Slashdot videos: Now with more Slashdot!

View

Discuss

Share

We've improved Slashdot's video section; now you can view our video interviews, product close-ups and site visits with all the usual Slashdot options to comment, share, etc. No more walled garden! It's a work in progress -- we hope you'll check it out (Learn more about the recent updates).

The OIN (Open Invention Network) site's front page starts out by saying, "Open source software development has been one of the greatest sources of innovation. It has reduced costs, improved functionality and spurred new industries." After another few sentences it says, "Open Invention Network® is an intellectual property company that was formed to promote the Linux system by using patents to create a collaborative ecosystem." Go a little deeper, on the About page, and you learn that: "Patents owned by Open Invention Network® are available royalty-free to any company, institution or individual that agrees not to assert its patents against the Linux System. This enables companies to make significant corporate and capital expenditure investments in Linux — helping to fuel economic growth." Today's interviewee, Deb Nicholson, is the OIN's Community Outreach Director. We did a video interview with OIN CEO Keith Bergelt back in February. This one adds to what he had to say. And once again, we remind you: "...if you or your company is being victimized by any entity seeking to assert its patent portfolio against Linux, please contact [OIN] so that we can aid you in your battle with these dark forces." Make your first contact through Linux Defenders 911 -- and may the OIN be with you!

Tim:
So Deb, you work for the Open Invention Network, what is that?

Deborah
Nicholson: So, we run a defensive patent pool
for Linux and GNU and Android and a lot of related development tools
and it’s basically – everyone agrees to not sue each
other on the free software tools in there and anyone can cross
license things there and use them defensively if they need to, but of
course they’re not for aggression.

Tim:
Well, what is your role with the OIN?

Deborah
Nicholson: So, I’m a Director of
Community Outreach and that means that I go and talk to developers
and projects about what they’re doing and what they could be
doing about patents.

Tim:
What is the trend like when it comes to the actual filing of software
patents?

Deborah
Nicholson: So it’s what we call
exponential, we are at about 40,000 software patents being granted
each year which is a lot considering that just about 10 years ago, it
was about 10,000 patents and even in 1990, it was just 5,000 software
patents a year, so it’s a very scary kind off-the-chart number.

Tim:
Now related to that, what about the trend when it comes to lawsuits
that happened based on software patents?

Deborah
Nicholson: Right. So with more patents, you
see more patent suits which is unsurprising. We see more patent
suits, especially in the area around software and particularly the
well known area with non-practicing entities or patent aggression
entities.

Tim:
So speaking of those, these non-practicing entities, do they hold
most of the patents that we see lawsuits about or are most of them
held by companies, the syndicates or the legitimately invented, at
least the software, if not the idea?

Deborah
Nicholson: Right. So, they’re bringing
I think more suits, but I don’t know that they’re holding
more patents. Many of them tend to be very cagey about their
holdings, famously Intellectual Ventures, there have been folks
trying to figure out exactly how many patents they hold and the best
they were able to come up with was a range and it was a large number,
but it was still just a range, so we don’t actually know.

Tim:
So companies like Intellectual Ventures sometimes are called patent
controls, are there some patents that are either more egregious or on
the other hand more defensible than others?

Deborah
Nicholson: Well, software lends itself to
suits because there’s a problem of notice, nearly everybody
operating in the field of software is infringing on a patent because
so many of them are written so broadly and it’s possible to
figure out and like you would in a physical space when you’ve
crossed into somebody else’s property and so that makes it very
much sort of the court’s opinion as to who is infringing once
you get to the court. And that works out really well for the frequent
litigator. They know how the courts work. They know how lawsuits
work. They know where to find the precedences and so the courts tend
to favor the frequent litigator.

Tim:
Now in the world of software patents, a lot of things that seem kind
of crazy seem to have made it past the US PTO, how does that happen?

Deborah
Nicholson: Well, the US PTO is, I guess,
maybe liken it to the post office, underfunded, over-worked and so
there’s that problem. I think another problem is that they
don’t have a great organization of where to look for software
patents. In more traditional engineering fields, you would just apply
to receive journals in your field and you would go to maybe a
conference or two a year, on like very tightly controlled physical
engineering field. So for software, there is no obvious couple of
academic journals to subscribe to, it’s the huge volume of
material ____4:00 and
most of it undocumented as far as like exactly
what it does. It just makes it really infeasible for them to figure
out like what the actual state-of-the-art is.

Tim:
It will be hard for them to get enough people who are conversant with
Perl conference right now, enough people who are conversant in Perl
which is sometimes written intentionally

Deborah
Nicholson: Yeah, well, that’s a
different issue, assuming that we want them to understand what we’re
doing. But yes, and then even then, even if you found out that this
was actually a new Perl thing, you would need to find someone
conversant in all of the other programming languages to make sure
that the same function isn’t being fulfilled with a program
that’s written in another language.

Tim:
And when it comes to that so many crazy
things get through or at least crazy from a non-patent attorney’s
viewpoint, what is the misconceptions that people have about
patentability and about what things get patented?

Deborah
Nicholson: So I think one of the big ones is
where people feel like, oh we should make it so the math is not
patentable, and that’s already on the book. So just changing it
to math not being patentable isn’t enough. We need to look at
why things that boil down to essentially math are getting patented if
we wanted to make a change in that area. The other thing that I see a
lot is where folks have conflated copyright law or trademark law with
patent law and so they want to propose a solution that really belongs
to another sphere and it makes it very confusing to talk about policy
solutions when you’ve been already talking with someone for a
few minutes and you realize they mean copyright law and not patent
law.

Tim:
I want to backup just for a second, you said
that math isn’t patentable. So explain how it is that patents
can be wrapped or math can be wrapped into patents that actually get
filed and accepted?

Deborah
Nicholson: Right, so it’s the anatomy
of a patent has a couple of different claims and so you would write a
patent that says the math part and how you use it in like step two,
three, four, five. So for technologists sometimes you’ll see a
patent and steps two, three, four, five boil down to on a computer.

Tim:
Or on the Internet.

Deborah
Nicholson: Or on the Internet, yes,
everything is on the Internet. Or in the cloud maybe. But it wouldn’t
be worded that way. It would sound a little bit more exciting, and so
it’s not supposed to be math on its own, but math as part of a
solution to a problem that has a number of specific steps. That’s
what the patent is supposed to be. Don’t write a patent based
on that very cursory explanation though. I’m not your lawyer.

Tim:
Yeah. Given that we have a world or US PTO as
it is, a lot of existing software patents, the OIN runs a pool of
software that – of software patents rather that people can then
use to prevent certain types of suits, what else can be done, what’s
the single most fruitful thing that somebody should want to happen in
the world of software patents to them less painful?

Deborah
Nicholson: So we don’t necessarily
prevent suits; in a perfect world we would have a situation where our
people are very well aware of the defensive patent pool, the Open
Invention Network codes, and anyone in the pool is like, oh you don’t
want to mess with those folks. I don’t think we’re quite
there yet, but one day Other things that folks could do, I
mean it’s impossible to not infringe, so that’s tricky,
but I would say to be proactive. Ignoring the problem with software
patent suits doesn’t make your company immune, and smaller
companies, I mean as much money as the larger companies have, many of
the, especially patent trial suits tend to be focused on smaller
companies because they know they don’t have the resources to
fight a legal battle and will just settle, so I would say for folks
to make sure that you are proactive about doing something as opposed
to hoping that it’ll go away before someone sends you a letter,
which sounds like a threat, but I don’t send any letters, so.

Tim:
At least probably not of the...

Deborah
Nicholson: Not like that.

Tim:
Not like that.

Deborah
Nicholson: Do people still send physical
letters that are not lawyers?

Not sure if they're trolling or if this is for real. It's a noble idea to try and protect the little guys, but you need a lot of capital to do that. It's going to cost a lot of money to defend against patent trolls. I think this is all going to end in tears. America invents turned into America prevents when it comes to ideas. At my job, where I work on medical devices to save people's lives, we were just given a a seminar by some patent-lawyer. He showed us how all our competitors are patenting the concept

Despite the snide comments here, I appreciate the work the OIN does, and wish more people would get involved. Perhaps if they did we'd have a better chance of getting software patents abolished, or at the very least made more trouble than it's worth. Thanks!

Microsoft has been bilking industry groups out of money over supposed Linux patent violations for over a decade. OIN was supposed to be the stockpile that would prevent Apple, Microsoft, and others from pulling the trigger on software patents. Instead, you took all of the F/OSS patent pool energy and restricted it to narrow definitions of core Linux technologies.

Finally, you talked about how tiny companies can't stand up to Microsoft and patent trolls yet you won't use your stockpile to "aggressively" sto

Open source has won a battle (ie. acceptance and widespread use) but could still lose the war. Patents are a minefield and I'm glad that OIN exists to at least offer some resistance on that front. We nerdy types are generally completely helpless in the legal world which is something we're not used to feeling, and this often manifests in a vague hostility and retreat from anything "legal" eg. software being released without a license, and blowing off the idea of contributing to a defensive patent pool. Th